Timothy R. HANSEN, Respondent on Review, υ. ABRASIVE ENGINEERING AND MANUFACTURING, INC., a foreign corporation, Petitioner on Review, and AKHURST MACHINERY, INC., an Oregon corporation, Defendant.
CC 87-CV-0302-TM; CA A61214; SC S39226
In the Supreme Court of the State of Oregon
August 12, 1993
317 Or. 378 | 856 P.2d 625
Argued and submitted November 2, 1992, decision of the Court of Appeals affirmed in part and reversed in part; judgment of the circuit court reversed and case remanded to the circuit court August 12, 1993
John R. Faust, Jr., Portland, argued the cause for respondent on review. The response was submitted by Donald A. Bick, of Bick & Monte, P.C., Eugene.
Robert K. Udziela, of Pozzi, Wilson, Atchison, O‘Leary & Conboy, Portland, filed a brief amicus curiae on behalf of the Oregon Trial Lawyers Association.
Joel S. DeVore, of Luvaas, Cobb, Richards & Fraser, P.C., Eugene, filed a brief amicus curiae on behalf of the Oregon Association of Defense Counsel.
VAN HOOMISSEN, J.
Gillette, J., filed a concurring opinion.
Plaintiff brought this product liability action in common law negligence against dеfendant Abrasive Engineering and Manufacturing, Inc., seeking damages for injuries that plaintiff sustained while cleaning a sanding machine that defendant designed and manufactured.1 The jury found plaintiff 60 percent negligent and defendant 40 percent negligent, and judgment was entered for defendant. See
We take the facts from the Court of Appeals opinion:
“Defendant designed, manufactured and assisted in installing a 6-head sanding machine at the plant of plaintiff‘s employer, Bend Millworks. The sander was specifically designed for sanding wood products. During the sanding process, wood pitch and other material would build up, [a phenomenon] known as ‘loading,’ on the sanding belts. Plaintiff had been working for about three months and had been taught employer‘s procedure for cleaning the loading. He would open two large doors, which gave access to the sanding heads, partially insert his arm into the machine between two sanding heads and hold a rubber eraser and then a wire brush against the build-up on the sand paper which rotatеd on the sanding heads. On the night he was injured, plaintiff‘s glove was pulled by the sanding belt into a nip point between the belt and a pinch roller, essentially sanding off all of his left hand except for his thumb and a portion of his palm adjacent to the thumb.” 112 Or App at 588.
Plaintiff‘s theory was that his injuries were caused by defendant‘s negligence in failing to incorporate machine safety features in the sanding machine consistent with safety rules promulgated under the Oregon Occupational Safety and Health Code (OOSHC) and the federal Occupational
Before trial, defendant moved in limine for an order prohibiting plaintiff from making any reference to or offering any evidence of the OOSHC or OSHA rules or the ANSI advisory standards.2 The trial court granted defendant‘s motion, reasoning that, because the OOSHC and OSHA rules wеre not applicable to a manufacturer and therefore imposed no “duty” on defendant, they were not admissible for any purpose. Notwithstanding that ruling, and over defendant‘s objections based on lack of relevancy and lack of a proper foundation, the court allowed the jury to consider the ANSI advisory standards on the issue of whether defendant met the applicable standard of care.
Over defendant‘s objection that plaintiff had not shown that certain witnesses were “unavailable” as that term is defined in
Over plaintiff‘s objection that the report was hearsay and not admissible under the business records exception, the trial court allowed defendant to read into evidence excerpts from a written report of Dr. Holland, a psychiatrist, who had examined plaintiff at the request of plaintiff‘s employer and its workers’ compensation insurance carrier as part of the
The jury found for defendant. After judgment was entered for defendant, both parties appealed. On plaintiff‘s appeal, the Court of Appeals reversed, holding thаt the jury should have been permitted to consider the OOSHC and OSHA rules in its determination of what standard of care defendant should have been expected to meet and, therefore, that the trial court erred in ruling that the OOSHC and OSHA rules were not admissible for any purpose. The court also held that Dr. Holland‘s report was not admissible as a business record and that the trial court therefore erred in permitting defendant to read excerpts from that report to the jury.
On defendant‘s cross-appeal, the Court of Appeals affirmed the trial court‘s rulings that the jury could consider the ANSI advisory standards and that plaintiff could read into evidence portions of depositions of two witnesses who were out of state and unavailable for service of process. The Court of Appeals reversed and remanded the case for a new trial. We allowed defendant‘s petition for review.
On review, defendant contends that the Court of Appeals erred in concluding: that the jury could consider the ANSI advisory standards on the issue of whether defendant met the applicable standard of care; that the OOSHC and OSHA rules were improperly excluded at trial; that defendant should not have been permitted to read excerpts from Dr. Holland‘s report into evidence; and that the trial court properly allowed plaintiff to read into evidence excerpts of the transcripts of the discovery depositions of two witnesses. We consider each contention in turn.
Defendant contends that the Court of Appeals erred in holding that the trial court properly allowed the jury to consider the ANSI advisory standards on the issue of whether defendant failed to meet the standard of care that defendant owed to plaintiff. Defendant argues that, because the ANSI standards are purely advisory and not binding on anyone, they are not relevant. Plaintiff responds that, although such standards are advisory, they provide some evidence of whether defendant‘s conduct met the applicable standard of care.
Determination of the appropriate standard of care is an issue of law. In this case, both parties agree that the general “reasonable person” standard of care applies. Whether a defendant has met that standard of care is an issue of fact, to be determined by the jury. Thus, evidence pertaining to whether defendant‘s conduct was reasonable is relevant to the jury‘s determination of whether defendant met the reasonable person standard of care.
Because advisory safety standards that are adopted by nongovernmental entities such as ANSI may represent a consensus regarding what a reasonable person in a particular industry would do, they may be helpful to the trier of fact in deciding whether the defendant has met the standard of care due. See Annot, Admissibility in Evidence, on Issue of Negligence, of Codes or Standards of Safety Issued or Sponsored by Governmental Body or by Voluntary Association, 58 ALR3d 148 (1974 & Supp 1992) (noting trend toward admissibility of such standards on issue of failure to meet standard of care); Madden, Products Liability §12.4 (2d ed 1988 & Supp 1992) (industry standards may be admissible as evidence of negligence).
Although violation of an industry custom does not constitute negligence per se, it may be shown in order to establish whether a party has met a standard of care to which the party is required to conform. “It is a test of negligence, but not a conclusive or controlling test.” Mennis v. Cheffings, 233 Or 215, 220, 376 P2d 672 (1962) (pre-OEC case).
The ANSI advisory standards provide some evidence of the custom in defendant‘s industry and, therefore, are
OOSHC and OSHA Rules
Defendant next contends that the Court of Appeals erred in holding that evidence relating to the OOSHC and OSHA safety rules were improperly excluded at trial.3 Defendant argues that, because it is not an employer subject to the safety requirements contained in those two sets of rules, the court misapplied the rule of law from Shahtout v. Emco Garbage Co., 298 Or 598, 695 P2d 897 (1985), that allows for use of certain safety regulations in negligence cases. Plaintiff responds that, because the rules at issue here pertain to proper guarding of the machine to ensure that workers do not sustain the type of injury that plaintiff sustained, the existence of OOSHC and OSHA rules governing the use of such machines in the employer‘s workplace is relеvant to the issue of the standard of care that defendant should have exercised.
The Court of Appeals relied on this court‘s decisions in Bellikka v. Green, 306 Or 630, 762 P2d 997 (1988), and Shahtout v. Emco Garbage Co., supra, for the proposition that, although a statutory standard of care does not apply to a defendant, the statute (or rules such as the OOSHC and OSHA rules) might provide some indication of whether defendant met the standard of care due. Hansen v. Abrasive Engineering and Manufacturing, supra, 112 Or App at 589.
In Shahtout, the plaintiff was struck by the defendant‘s truck while it was backing up. The plaintiff brought an action for common law negligence, arguing that the truck should have been equipped with a back-up signal and relying in part on a Workers’ Compensation Department safety rule requiring such devices to be used on job sites such as the defendant‘s. 298 Or at 600. Although the plaintiff in Shahtout was not an employee of the defendant, and the safety rule did not “fix a standard of due care for liability toward persons other than employees,” id. at 604, this court held that the rule was relevant to the issue of due care, id. at 604-05.
Defendant urges that those cases are distinguishable from the present case, because in each of those cases the defendant was bound by the rule in question, even though the rule did not fix the standard of care due to the plaintiffs. Plaintiff argues that the dictum from Bellikka v. Green, quoted above, indicates that the same rule applies even if a defendant is not bound by the rules in question. For the reasons that follow, we hold that the OOSHC and OSHA rules should have been admitted into evidence in this case and that plaintiff‘s experts should have been allowed to rely on those rules in their testimony.
This court has held that a “manufacturer should have a duty of exercising due care to avoid foreseeable harm to the users of [its] product.” State ex rel Western Seed v. Campbell, 250 Or 262, 270, 442 P2d 215 (1968), cert den, 393 US 1093 (1969). In the present case, the jury was required to determine whether defendant‘s design and manufacture of its sanding machine fell below that standard of care. Defendant designed and manufactured its sanding machine for use by customers such as plaintiff‘s employer for use in a workplace governed by the OOSHC and OSHA rules. Thus, the OOSHC and OSHA rules are relevant, even though not binding on defendant, for exactly the same reasons that the ANSI standards are relevant, i.e., because they pertain to the issue of whether defendant met the standard of care. Those non-binding rules are properly to be considered as evidence, similar to evidence of industry custom or trade practice,4 and
The use of standards such as the OOSHC and OSHA rules in tort cases has gained acceptance in recent years, even where a defendant manufacturer is not bound to those standards. Sometimes such standards are used by the defendant in a products liability case, either to shift the blame to the plaintiff‘s employer where the employer was not in compliance with the rules or to show that the defendant‘s product complied with the rules. It is also possible, however, for plaintiffs to use such rules in order to provide some evidence of whether the defendant met the standard of care due. See generally Note, The Use of OSHA in Products Liability Suits Against the Manufacturers of Industrial Machinery, 11 Val U L Rev 37, 51-61 (1976) (citing cases).
We conclude that the OOSHC and OSHA rules may be relevant to tort claims even when a defendant is not bound by those rules, depending on the circumstances of the case. Under circumstances such as these, where the defendant is not bound by the OOSHC and OSHA rules, those rules should be treated the same as the ANSI standards; they provide some relevant information for consideration by the jury about whether the defendant met the standard of care due and are, therefore, admissible as evidence. The trial court erred in excluding that evidence.
Dr. Holland‘s Report
Defendant contends that the Court of Appeals erred in holding that defendant should not have been permitted to read excerpts from Dr. Holland‘s report into evidence. Defendant argues that the trial court correctly concluded that the
Plaintiff was sent to Dr. Holland by plaintiff‘s employer‘s insurer for psychiatric evaluation as part of the insurer‘s defense of plaintiff‘s workers’ compensation claim. Dr. Holland did not treat plaintiff. Defendant did not offer Dr. Holland‘s entire report. Rather, it offered only certain portions: Dr. Holland‘s diagnosis and plaintiff‘s own statements to Dr. Holland. The reports prepared by Dr. Holland contained opinions and diagnоses and were made from information transmitted by plaintiff. They were kept in the regular course of Dr. Holland‘s practice. Plaintiff has pointed to nothing regarding the circumstances of their preparation to indicate lack of trustworthiness, except the fact that the examination was conducted at the request of an insurer in contemplation of possible future litigation. By its express terms,
Plaintiff‘s statements to Dr. Holland were statements of a party opponent,
Deposition
Last, defendant contends that the Court of Appeals erred in holding that the trial court properly allowed plaintiff to read into evidence portions of the transcripts of the discovery depositions of two witnesses on a mere showing that the witnesses were beyond the reach of a subpoena. Defendant argues that, because plaintiff had not shown any effort to procure the witnesses by “other reasonable means,” as required by
“At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
“*****
“(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
* * * (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing ** *.” (Emphasis added.)
In Carey v. Bahama Cruise Lines, 864 F2d 201 (1st Cir 1988), a party sought to introduce deposition testimony of declarants who were more than 100 miles from the location of the trial. The court concluded that “this hearsay evidence was admissible under Federal Rule of Civil Procedure 32, Use of Depositions in Court Proceedings, which creates an independent exception to the hearsay rule.” Id. at 204. In a footnote, the court noted that
Southern Indiana Broadcasting, Ltd. v. F.C.C., 935 F2d 1340, 1342 (DC Cir 1991), states: “[
Finally, when two statutes seemingly are in conflict, the more specific statutes controls over the more general statute. State v. Pearson, 250 Or 54, 58, 440 P2d 229 (1968).
In summary, we hold that the OOSHC and OSHA rules were improperly excluded and that the ANSI advisory standards were properly received at trial. We hold that the Court of Appeals erred in ruling that excerpts from Dr. Holland‘s report were not admissible into evidence. Finally, we hold that the trial court properly allowed plaintiff to read
The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is reversed. The case is remanded to the circuit court for further proceedings.
GILLETTE, J., concurring.
I join in the opinion of the court. However, with respect to that portion of the opinion that deals with the OOSHC and OSHA safety rules, I have the following additional observations:
The holding in Shahtout v. Emco Garbage Co., 298 Or 598, 695 P2d 897 (1985), may be easy to identify, but its rationale is somewhat less clear. The holding is correctly summarized in the lead opinion (
“Governmental safety regulations * * * are law. * * * Because they are laws, the question is not whether they are evidence of a fact but rather what bearing they have on the governing standard of conduct.
“*****
“Whether one of [a governmental agency‘s] safety rules bears on the issue of due care toward a nonemployee depends on the nature of the requirement, the place and circumstances in which it applies, and the type of risk it is meant to prevent. * * *
“In order to decide whether a safety rule should be considered by a factfinder, therefore, a trial court must first determine its purpose and the nature and circumstances of the risk to which the rule is addressed, particularly whether the department contemplated a risk peculiar in nature or gravity to an employee‘s position in the workplace * * *.
“* * * The role of the rule is not to show what in fact happened nor what experts or others engaged in activities like those that caused the injury consider the proper means to avoid it. If the safety rule is one that may be considered at all under the foregoing test, the jury (or judge) may take this governmentally prescribed safeguard into account in deciding the issue of due care. Plaintiff may argue that the government has adopted the rule as an obligatory safeguard for employees in the kind of situations and agаinst the kind of
risk that led to plaintiff‘s injury. Defendant, of course, may argue that the safeguard for employees exceeds the ordinary standard of due care considering the nature of the risk and the foreseeability of injury.”
The rationale for the foregoing needs exploration, because this particular case is not governed by the language of the safety rule. In Shahtout, the rule applied to the defendant, but the plaintiff was not a person within the scope of the rule‘s protection. In this case, plaintiff is a person within the scope of the rule‘s protection, but the rule does not apply to the defendant. The lead opinion recognizes this distinction in a way, but does little to make the connection between the Shahtout rationale and the outcome of this case beyond announcing the latter with a citation to the former.1 The foregoing notwithstanding, I believe that the rationale of Shahtout, when properly understood, does support the result that the lead opinion announces here.
The Shahtout rationale is that, because they are laws, safety regulations are like statutes passed by a politically accountable legislative body. Such a legislative body has the power to determine public policy, including the pоwer to declare what standards it deems pertinent to protecting portions of the public from various kinds of harm.
Safety standards set by a legislative body (or by a governmental agency pursuant to authorization from such a body) may be limited in scope, either because (in the case of the legislature) the particular concern that led to the promulgation of the standards was itself limited or because (in the case of the agency) the scope of the agency‘s authority was limited. Indeed, Shahtout is an illustration of the latter case — the rule in question by its terms extended only to workers, because the authority of the promulgating agency extended
I would hold that legislative or administrative safety standards that are applicable either to a plaintiff or to a defendant may be considered by a jury in determining whether a party has met the appropriate standard of care, subject to any party‘s right to show, inter alia, that the standards exceed (or fall short of) the appropriate rule, that the standards were not known (and, in the exercise of reasonable care, could not have been known) to the party against whom they are offered, that the party against whom they are offered reasonably expected some other party to comply with the standards, and the like.
With that additional explanation, I join in the court‘s holding that plaintiff was entitled to have the trier of fact informed as to the provisions of the OOSHC and OSHA rules.
Notes
“(1) Specific state safety code sections or their requirements until relevancy becomes unconditional.
“(2) Any federal safety code sections.
“(3) Specific advisory standards or their requirements until relevancy becomes unconditional.”
The admissibility of the OOSHC and OSHA rules is not based on the rationale from the Shahtout case. In Shahtout, the defendant was bound by the rules, and they were subject to judicial notice. Shahtout v. Emco Garbage Co., 298 Or 598, 605, 695 P2d 897 (1985).
“The following are not excluded by [
“*****
“(6) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of [sic] circumstances of preparation indicate lack of trustworthiness. The term ‘business’ as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”
“A statement is not hearsay if:
“*****
“(b) The statement is offered against a party and is:
“(A) That party‘s own statement * * *[.]”
“Hearsay included within hearsay is not excluded under [
The language of
“Is absent from the heаring and that the proponent of the declarant‘s statement has been unable to procure the declarant‘s attendance * * * by process or other reasonable means.”
“The following are not excluded by
“Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive or develop the testimony by direct, cross, or redirect examination.”
“Hearsay is not admissible except as provided in [
“At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party for any purpose, if the party was present or represented at the taking of the deposition or had due notice thereof, and if the court finds that:
*****”
“(c) The party offering the deposition has been unable to procure the attendance of the witness by subpoena[.]” (Emphasis added.)
“Depositions taken to perpetuate testimony under ORCP 39I are defined as ‘not hearsay’ by Rule 801(4)(c). Therefore, such depositions are admissible to the extent the testimony therein complies with the other rules of evidence.
“The admissibility of other depositions in civil cases [such as the deposition in this case] is governed by“’